38 Ky. 150 | Ky. Ct. App. | 1839
delivered the opinion of the Court.
On the 10th of December, 1836, H. and R. M. Bishop sold and covenanted to deliver to McNairy and Walker, between the 15th and 20th of October, 1837, six hundred fat hogs, of a specified description, to be delivered in such pens as the vendors should select, within ten miles of Elizaville; and the vendees, at the same time, covenanted to pay for the hogs four dollars and fifty cents per hundred pounds, on the delivery thereof according to contract.
The vendees resided between twenty and thirty miles from Elizaville; and having never, so far as now appears,
But a written notice was left at the house of McNairy, with his wife, during the afternoon of Saturday, the 14th of October, 1837, and'at the house of Walker during the night of the same day, with one of his sons over sixteen years old — stating that the vendors would “ proceed to commence weighing the six hundred hogs” — “at the house of Alms Hart,” on Monday, the 16th of October, 1837, “between the hours of 11 and 12 o’clock, A. M.” and requesting the vendees to attend then and p
At the time and place thus designated, the vendors commenced weighing hogs, and having weighed about two hundred and thirty hogs, such as their covenant described, they went to one Hord’s, about four miles from , . ’ Hart’s, but withm ten miles of Elizaville, and weighed as many more of the like hogs as made the total number six hundred and four; and having finished the process of . , . , , , , , í weighing about “ sunset,” on the 20th day of October, they then announced, in the hearing of many of the neighbors who were present, and of a son of the vendee, Walker, who had just arrived, that they were ready to deliver the hogs according to their covenant. But neither of the vendees attending, there was no actual delivery and no payment of the price; and on the next day, most of the hogs, which were the property of divers of the neighbors who had brought them for the use of H. and R. M. Bishop, were sold to others by their owners, at the then market price of three dollars.
The vendors then brought an action of covenant against the vendees, averring the notice as before de
And this appeal brings up that judgment for revision.
Whether the foregoing facts were sufficient to maintain the action, is the only question we shall consider.
The delivery of the hogs and the payment of the price were concurrent acts; and though, therefore, it was incumbent on the plaintiffs in the action to show that they had, according to their covenant, done all they ought to have done towards fulfilling their undertaking, yet, in such a case, to entitle them to special damages, it was not their duty to weigh and make a formal tender of the hogs when neither of the vendees was present to receive them; such a ceremony, for such a purpose, would have been idle and unnecessarily inconvenient and expensive, in the absence of the purchasers. All that either reason or law required in such a case, and for such an end^was a readiness and offer to deliver the full number of hogs, according to the covenant, at such place or places, within ten miles of Elizaville, as the vendors had selected, provided they had previously given reasonable notice of such selection to the vendees, or had, in good faith, made proper efforts to give such notice, and had been eluded.
But neither the notice nor offer to deliver was, in our opinion, sufficient.
The statute prescribing the mode of giving judicial notices, does not apply to such a case as this, in which actual notice, if not prevented by the vendees, was necessary.
As the appellants had received no actual notice, from December 1836 to the 14th of October, 1837, of the fact that the appellees would deliver the hogs, or of their election as to the place or places of delivery, it was not their duty, either to go to the appellees, or to neglect other important business, and remain at home after the 14th, ready to receive notice if any should be
But the notice attempted, even if sufficient as to manner and time, was insufficient to sustain the offer to deliver the hogs at Hord's. Waiving any objection to it on the ground that it did not specify when or where the hogs would be delivered, but only suggested the time when and a place where the weighing would be commenced, the fact that it designated one place only, is in our opinion, sufficient to destroy its efficacy as a notification of a delivery at two different places, or at a place not designated. Had the appellees heard of the notice, and, instantly abandoning their business in Clarke, had hastened to Hart’s, seeing, as they would have seen, only about two hundred and thirty hogs there, which alone they were under no obligation to receive, they might have refused to take them, and have gone away without responsibility. And we cannot judicially know or presume, that, had they thus gone to Hart’s, they would there have been notified that the residue of the six hundred hogs would be delivered at Hord’s, within the time prescribed by the covenant. As to the hogs at Hord’s, and the offer to deliver them, the notice was no more applicable or effectual than it would have been had it only signified a wish that the appellants would, at some specified time, attend at some designated place for the purpose of receiving notice of the time and place or places of delivery. And it would certainly not have been their duty thus to wait on the appellees to receive notice.
Besides the only offer to deliver was made at Hord's, on the evening of the last day, when and where there were not six hundred hogs to deliver.
Now, although it is important that the integrity of such contracts should be sternly upheld, yet as the appellees had not expended much, if any money, in buy
It seems to us, therefore, that, in reversing the judgment, as we think the’ rules of law require us to do, no '¡injustice will be done to the appellees, and that they will have no cause to complain of hardship or loss.
Wherefore, the judgment is reversed, and the cause remanded for a new,trial.